I-CAN-GHANA

(Anniversary Lecture: OccupyGhana v. Attorney General
British Council Hall, Accra 14th June 2019)

Theme: From Surcharging to Safeguarding: Next Steps in the Fight to Protect the Public Purse

Mr. Vice-President, My Lord Jones Dotse, the Auditor-General, The Special Prosecutor, distinguished ladies and gentlemen:

On 15th October 2014, OccupyGhana issued a press statement to mark the first 100 days of the 1st July 2014 demonstration organised by the Concerned Ghanaians for Responsible Governance and dubbed “OccupyFlagStaffHouse,” the event that ultimately led to the formation of OccupyGhana as an organisation. In addition to our ‘rants’ about the state of the nation, we made one poignant point that attracted some press headlines, but, as is often the case in Ghana, disappeared from the headlines soon thereafter. This is what we said:

“Ladies and Gentlemen, one strong institution that has been created by our law and literally empowered to nip public sector corruption in the bud is the Audit Service; yet successive Auditors-General have failed this nation simply because they have been too weak to exercise these powers. Specifically, the Constitution and the Audit Service Act empower the Auditor-General to disallow expenditures that are contrary to law and then surcharge the public official responsible for incurring or authorising such expenditure with the amount of any loss incurred to the state. If the official does not pay within 60 days, the Auditor-General is to refer the matter to the Attorney-General, who is then required by the law to commence legal proceedings against the affected official, to recover the monies lost to us.

Ladies and Gentlemen, to the best of our knowledge and information, this power has NOT been exercised by any Auditor-General. All that successive Auditors-General seem to do is to issue yearly audit reports, send them to Parliament, go to sleep, and wake up the next year to begin this impotent cycle all over again. The effect is that public officials, who have paid out and spent the taxpayer’s monies with reckless abandon, are comforted in the belief that nothing will ever happen to them.

Dammarie-les-Lys OCCUPYGHANA will bring this culture of combined impotence and impunity to an end. We are going to deliver a 30-day notice to the Auditor-General and the Attorney-General, as required by law, that they should stand up and be counted, and immediately exercise this power of disallowance and surcharge under the law. It is time for the Auditor-General to dig and rake up all past Audit Reports and apply the law. Notice is further served, that if the law is not complied with, we will commence legal proceedings in court to compel the due performance of those statutory functions and duties.”

Impudent? Sassy? Effrontery? Audacity? Guilty as charged. But we had no illusions that officialdom would simply roll over and accept this demand. They ignored this statement.

On 12th November 2014, we wrote to the Attorney-General and Auditor-General putting them on formal notice of our intentions. That 4-page letter set out our understanding of these powers, and stated that we had studied the Auditor-General’s Audit Reports to Parliament for 11 years, which had identified

“a wide range of stolen and/or misappropriated funds which are due to the public purse. Nevertheless and quite without explanation, although the Auditor-General is known to have made ‘recommendations,’ OccupyGhana and most Ghanaians are not aware of a single instance in which a Disallowance and Surcharge has been made by the Auditor-General.”

This time, someone took notice. The then Acting Auditor-General responded on the very next day, acknowledging receipt of the letter. The 13th November 2014 response said two main things: first, it drew our attention to the fact that under article 187(7) of the Constitution, “the Auditor-General shall not be subject to the direction or control of any other person or authority in the performance of his functions.” Second, and in the final paragraph, the letter asked us to expect a further response “as a means of educating OccupyGhana and the general public on the validity or otherwise of matters raised in your letter.”

This letter led to wild jubilation in certain circles, especially on social media. One deputy minister at the time wrote on Facebook: “I just love the final paragraph.” We waited for this to fester for a while and then we sent a response. In our 20th November 2014 letter We told the Auditor-General that his reading of the Constitution should not end at article 187(7), and that he should continue to article 295(8), under which no independence:

“shall preclude a court from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or the law.”

What followed was a furious exchange of letters between us. The Auditor-General insisted that the office “has performed its constitutional functions as contained in article 187.” We challenged them to give us examples. They gave ONE! And even that did not follow the procedure in the law and had been dismissed by the court.

Then we discovered a ‘bomb’ on the Internet. This was a 23rd March 2006 presentation by the then Auditor-General, Mr. Edward Dua Agyeman at a Seminar on Macroeconomic Modelling and Public Accounts Management organised by the Centre for Policy Analysis at Miklin Hotel, East Legon Accra. In the presentation, he described the power of surcharge as “a unique power” given by the Constitution and Audit Service Act. He then added:

“So far this power has not been invoked against public official because they are given the opportunity to rectify financial lapses resulting in delayed accountability. However, because of the escalation in cash irregularities by 99.5% in 2004 involving unpresented payment vouchers and unacquited payments, the Auditor-General will invoke his powers of surcharge against responsible officers for such serious compliance violations in 2006. This robust sanction will hasten and deepen accountability in this country.”

It got more interesting. We also discovered on the Internet a document prepared by the Auditor-General, containing proposals to the Constitutional Review Commission for the amendment of constitutional provisions relating to his office in 2010. In that document, the Auditor-General expressly conceded that he is “not actively introducing measures to implement” his power of Disallowance or Surcharge. At page 16, paragraph 21.ii (Issues and Comments), the Auditor-General states as follows

“The Office of the Auditor-General has received adverse comments from Development Partners who have invested in the national budget and also from parliament for not actively introducing measures to implement the provisions on surcharge and disallowance.”

Why was the Audit Service telling us that it had exercised the powers but telling others that it had not? In one letter we said “our demands are simple. Either you have done your work or you haven’t.”

On 27th March 2015, we had the first direct meeting with the top brass of the Audit Service on this matter, and at their invitation. The then Deputy Auditor-General’s letter of 8th April 2015 confirmed our agreement at the meeting to form a Working Group of 5 (2 from the Audit Service, 2 from OccupyGhana and 1 from the Attorney-General’s Department) “to discuss the format” of Notices of Disallowance and Surcharge and the Certificate, “come out with the proposed format within two weeks,” “discuss the manner in which the Notices…would be issued,” and “make recommendations for any residual matters.”

We were excited. We believed that this matter was not going to end up in court. We naively predicted that the first Disallowances and Surcharges would be issued within a month. But our excitement probably drove us too far, too quickly. We consulted with colleagues in other countries and found a format for surcharging in Uttar Pradesh in India. Our Legal Team and Accountants spent time working with that precedent, and then we forwarded that to the Auditor-General and Attorney-General within days, stating that even before the Working Group would start meeting, these were drafts to be considered to ease the work. Ladies and gentlemen, that was the last time that the Auditor Service spoke with. Our several reminders went unacknowledged. Had we run too quickly and was officialdom put off by our speed?

Were we losing the fight? The public appeared to have lost interest. We had issued court threats and were instead meeting and negotiating with the other side. Tough times. Then we discovered what turned out to be our lightning rod: Article 187(10) had tasked the Rules of Court Committee to enact rules on appeals against surcharges to the High Court. Those rules had not been passed. We saw an opportunity; and here’s a confession – If we could get those appeal rules passed, it would conveniently put the cart before the horse, and the tail would start wagging the dog, literally. If the appeal rules were enacted, then it would be a matter of course that the surcharge regime would have to be put in place. You can’t have an appeal procedure when the originating cause of the appeal does not exist.

And so with an ‘evil’ twinkle in our eyes and a ‘diabolical’ spring in our step, we mapped out the strategy that turned out to be a winner. First, we wrote to the Rules of Court Committee to ask about the rules. They wrote back and asked us to help them draft the rules. Our Legal Team then sent a draft to them in less than two weeks. The Committee worked on the draft, and sent us their draft for our comments. We were on the same page. Ladies and Gentlemen in 2016, the Committee laid the bill before Parliament, which passed and became known as the High Court (Civil Procedure) (Amendment) (No. 2) Rules, 2016 (CI 102) that entered into force on 5th January 2017. It amended the High Court Rules to introduce in a new Order 54A, a procedure for appealing against the Auditor-General’s disallowances and surcharges. We like to impudently call that law the “OccupyGhana Rules.” Thus we had in place our desperate cart-before-the-horse or tail-wags-the-dog scenario where the rules for filing appeals against disallowances and surcharges were in place, but the actual disallowance and surcharge system itself was not. This is what the lawyers call a lacuna, a void, the filling of which was inevitable and simply a matter of course.

Once we knew that the draft bill was on its way to Parliament, we sued. Our Legal Team worked hard with our lawyer, Thaddeus Sory, to produce the documents for court. We filed the case on 21st June 2016. In all, we filed close to 300 pages of materials. But our entire case rested on two very simple arguments. First, we conceded that the Constitution had vested the power to disallow and surcharge in the Auditor-General with the word “may.” But we argued:

“…whether the use of the word “may” in Article 187(7)(b) is construed as merely permissive and empowering, or as “shall,” being imperative and mandatory, the abject failure of the Auditor-General to ever exercise a constitutional power, not even once, in the face of successive financial infractions that he discovers yearly, is a breach of the Constitution.”

Second, Article 296 said that where the Constitution vests a power or imposes a duty, “the power may be exercised and the duty shall be performed from time to time, as occasion requires.” So we said

“…where the circumstances have arisen that should trigger the exercise of the power, or the occasion requiring the exercise of the power has arisen, a person vested with such a power has no option but to exercise it…Therefore, as long as the circumstances to trigger the exercise of the power have arisen, the Auditor-General has been under a constitutional obligation to apply the power and help recover the monies lost to Ghana from the people responsible for the losses. Sitting idly by and never deploying the power of disallowance and surcharge cannot be a reasonable use of his powers. Indeed, we will humbly submit that the lack of use of the power is an abuse of the power.”

The Government responded, throwing the legendary kitchen sink at us. They insisted that we were wrong and that the Auditor-General had been exercising the power, but through management letters. The Government even argued that we had wrongly invoked the jurisdiction of the Supreme Court.

In the interim, the out-going NDC government appointed one Daniel Domelevo as Auditor-General. That was a game-changer. He met with us. We explored an out-of-court resolution of the matter, but decided to wait to see what the Supreme Court would do. That change in leadership at the Audit Service brought with it a refreshing change in attitude and approach. Thus by the time the judgment was delivered OccupyGhana and the Auditor-General, hitherto adversaries, had become strong allies in the same cause, joined at the hip, singing from the same hymn sheet and fighting from the same corner.

On 14th June 2017, just a week to the first anniversary of the date the suit was filed, the Supreme Court spoke. It was a unanimous judgment of the panel of 7 justices, presided over by Sophia Akuffo JSC (as she then was), just 5 days before she was sworn-in as Chief Justice. In the judgment read by Dotse JSC, it was clear that our CI 102 strategy had worked. The court said:

“The enactment of CI 102 makes it quite certain that the powers of the Auditor-General…are to retrieve from persons who have caused loss of public funds in their management of same which is contrary to law. The law speaks for itself and there can be no turning back on this.”

The court then considered the critical issue of the words “may” and “shall,” asking:

“Should this court hold and rule that, because the word “may” has been used in article 187(7)(b) of the Constitution 1992, the Auditor-General’s powers of Surcharge and Disallowance are not mandatory and can be exercised at the whims and caprices of the Auditor-General? Are these constitutional obligations discretionary then?”

The court answered these questions in a way that blew our minds. It referred to Mr. Dua Agyeman’s presentation and promise to implement disallowances and surcharges, and held that:

“However, this resolve to exercise this power from 2006 has not only been breached, but there has been stoic silence from the office of the Auditor-General to date.

When we put all the learning…together, the “may” in article 187(7)(b) of the Constitution 1992, becomes a mandatory may, and no longer permissive. This is to afford us the opportunity to enforce the provisions of article 187(7)(b) which will deepen probity and accountability.

It is to be noted that the times we are in as a nation require that we deepen and institutionalize principles which will uphold proper and decent management and protection of public accounts. The tendency where public accounts are considered as a fattened cow to be milked by all and sundry must stop. Our laws on financial management must therefore be made to work to prevent absurdity in our enforcement regimes of same.

We reckon that, it is in the pursuance of these noble objectives that the Rules of Court Committee has enacted CI 102…

The rationale for the above is to give teeth to the constitutional and statutory mandate of the Auditor-General’s powers on Disallowance and Surcharge to bite.”

The Court then made consequential orders that “henceforth, the Auditor-General shall take steps to recover…” But the Supreme Court was not done. It added, significantly, that

“Finally, the Attorney-General is hereby ordered to take all necessary steps to enforce the decisions or steps taken by the Auditor-General to ensure compliance including in some cases criminal prosecutions.”

And so right there in the judgment we celebrate today, we have the two post-surcharge safeguards of the public purse. First, Kyurdarmir RESOURCE THE LAW ENFORCEMENT AGENCIES! The court said:

“…what is apparent is that, there is an urgent need to adequately resource not only the office of the Auditor-General, but also that of the other constitutional bodies like the Judiciary, CHRAJ and Attorney-General, just to mention a few, who are the front runners in our fight against corruption. This will ensure that the impact of these constitutional bodies in our quest to ensure probity and accountability thereby enhancing proper management and control of public funds is put on a higher pedestal.

We believe that as a nation, we have reached a critical stage in our governance systems where we must not shy away from spending wisely in order to superintend the public purse. This is the only sure way to ensure that the good governance principles enshrined in the Constitution such as Article 187(7)(b) are not lost.

There is an old adage which states as follows “penny wise, pound foolish.” We therefore must adequately fund these constitutional bodies including the Auditor-General to ensure maximum protection of the public funds.”

The battle to surcharge has been won. The battle to safeguard has just begun. The effect of the Supreme Court judgment is that Auditor-General is mandatorily required to disallow and surcharge whenever he discovers that wrongs have occurred. The language of the Court is so imperative that I dare say, that the Auditor-General has no discretion in the matter. If he fails, refuses or neglects to disallow and surcharge, he could be in contempt of court. Mr. Domelevo we salute you for the work you are doing. But OccupyGhana would gladly cite you for contempt if you ever do not disallow and surcharge, when the situation so demands. This is not a threat. It’s a promise.

But to these words of wisdom, the Supreme Court added the second post-surcharge safeguard: ENFORCE THE LAW! The Court said the civil recoveries must go hand-in-hand with criminal sanctions. The law already assumes that this is happening. That is why section 85(2) of the Public Financial Management Act, 2016 (Act 921) provides that:

“The Attorney-General shall, on an annual basis, submit a report on the status of any action commenced on behalf of the Government to the [Finance] Minister, Auditor-General and Parliament following findings of the Auditor-General and recommendations of the Public Accounts Committee of Parliament.”

OccupyGhana confesses that it has not followed this up. We assure Ghanaians that the first thing that will leave our desks on Monday morning is a ‘polite’ letter to the Attorney-General for an update.

Ladies and gentlemen, Ghana has no shortage of laws that will punish the stealing of our funds. We just don’t enforce them. Often, it appears we have even forgotten that those laws exist.

The Auditor-General’s Report covering the audit of liabilities of Ministries, Agencies and Department as at 31st December 2016, submitted to Parliament on 23rd January 2018 showed that out of the total of GH₵11.8 Billion that public officers claimed that the government owed to contractors, GH₵5.5 Billion was foam, fluff and padding, juju and tricks. The Auditor-General promptly disallowed it. But who would have spent that money if the government had made it available? Which officials submitted the false accounting claims? Was there a conspiracy and/or attempt to defraud the government to the tune of US$1 Billion at today’s exchange rate? Has anyone answered any questions to the CID, EOCO or OSP as the case may be?

The Auditor-General also has issued Disallowance and Surcharge certificates to the tune of half a billion cedis, which is outstanding. He has recovered GH₵67 Million and counting, through surcharges.

We have law that says corruption of a public officer (ie where the public officer agrees for their conduct to be influenced by a bribe) is a misdemeanour but could attract up to 25 years in jail. “Fraud by agents,” which is really the criminalisation of private acts of corruption, where a person dishonestly obtains a bribe from another, for doing or not doing an act regarding a principal’s affairs, is also a misdemeanour with the same 25-year maximum jail tag.

Under the Government Contracts (Protection) Act, 1979 (AFRCD 58), the official who issues payment certificates for government contracts and the recipient are liable to refund monies paid where the certificate was issued knowing that the monies were not due, including non-performance of the work or service and non-supply of goods. They could also pay a fine of up to three times the monies paid and/or go to jail for up to 10 years. Where there is corruption, the prescribed jail term is between 5 and 15 years. I am not aware that this law has ever been applied since it was enacted in 1979.

Under the Protection of Public Property Act, 1977 (SMCD 140), the intentional dissipation of public funds could attract a 10-year jail term without the option of a fine. Each of the following: intentional misapplication of, causing loss or damage to public property; loss caused by carelessness, gross negligence or dishonesty; failure to account for public property entrusted to or under control of a person; using public property for private gain; and obtaining public property by false statements, could attract a 5-year jail term. Additional penalties that a court may impose include seizing assets held directly or indirectly in Ghana, or being compelled to transfer title to assets situated outside Ghana.

Time will not permit me to present a compendium of laws that exist and may be used to safeguard the public purse. But for now, several remain as beautifully ignored adornments in our statute books. This needs to change.

To safeguard is to protect, defend, preserve and maintain. We need to move from the mode where Ghana is just a large compound house where everyone knows everyone, someone knows someone who knows someone, and where friendships, family relationships, tribal links, religious affiliations, old school associations and partisan connections trump the law and principles. If we want to safeguard and superintend the public purse, OccupyGhana says it agrees with the Supreme Court. First, let us provide resources for the relevant agencies to work. Second, let us enforce the law. SIMPLE.

Albert Einstein said “We cannot solve our problems with the same thinking we used when we created them.” He is also widely credited with saying, that “the definition of insanity is doing the same thing over and over again, but expecting different results.” We need to change. This nation needs to be graced by the “wise, brave and strong” who are prepared to help the right and fight the wrong, and make “our folk a nation.”

When OccupyGhana looks back to when we started this to help the right and fight the wrong, to today when so much is happening with what started as a simple statement, Ghana has made some progress. We were derided by some and encouraged by others. For example, right after a minister publicly savaged us, we got support from what many would consider an unlikely source. Mr. Johnson Asiedu-Nketiah jumped to our defence. He is reported to have said on 16th January 2015 that it was retrogressive for anyone to brand OccupyGhana as anti-government when all it was seeking to do was to complement the government’s efforts in the fight against corruption. He added that he could not fathom why the Auditor-General had all these powers but had failed to crack the whip. He said “I believe OccupyGhana is helping the government’s fight against corruption.”

On 8th February 2018, OccupyGhana found its way into President Akufo-Addo’s 2018 State of the Nation Address when he said “the role of OccupyGhana in increasing awareness of the importance of the work of the Auditor-General should be recognized.”

On 20th November 2014 when we were launching this fight, the speech that I read recited these endearing words of Osibisa:

“It will be hard we know
And the road will be muddy and rough
But we’ll get there…”

We got there, ladies and gentlemen, we got there. It was hard, muddy and rough, but we still got here. This event is organised by hitherto adversaries in court. Ghana got us here. Truly, what lies ahead is much more than what lies behind us. But we soldier on. It is said that “real supermen don’t leap over buildings in a single bound. They take small determined steps consistently over time.” And so step by step, bit by bit, little by little, fio-fio, nkakra-nkakra, poco-a-poco, we will get there. The final words in this book called ‘Ghana Incorporated’ should read “…and in the end, Ghana won.” Ghana has to sing that

“All I do is win win no matter what
Got the future on my mind I can never get enough
Every time I step up in the buildin’
Everybody’s hands go up
And they stay there…”

Resource the agencies. Enforce the law. Then Ghana will win.

Thank you.